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On February 20th, EPA Announced it will make a regulatory determination (RD) for two emerging contaminants-perfluorooctanesulfonic acid (PFOS) and perfluorooctanoic acid (PFOA)- under the Safe Drinking Water Act as part of its fourth Contaminant Candidate List. As part of this action, EPA plans to propose nationwide drinking water monitoring for PFAS under the next Unregulated Contaminant Monitoring Rule (UCMR) monitoring cycle (UCMR 5) utilizing newer methods available to measure more PFAS and at lower minimum reporting levels than previous UCMR monitoring. EPA is also seeking comments on regulatory approaches for other per- and polyfluoroalkyl substances (PFAS).
A regulatory determination is a decision about whether or not to begin the process to propose and promulgate a national primary drinking water regulation (NPDWR) for an unregulated contaminant. A preliminary regulatory determination set forths EPA’s view about whether certain unregulated contaminants meet three statutory criteria.In proposing this regulatory determination, EPA found that these substances meet the three statutory criteria: (1) PFOA and PFOS may have an adverse effect on human health;(2) that PFOA and PFOS occur in Public Water Systems (PWS) with a frequency and at levels of public health concern; and (3) that regulation of PFOA and PFOS presents a meaningful opportunity for health risk reduction for persons served by PWS.
After EPA considers public comment, EPA makes a final determination. For PFOA and PFOS, the agency may promulgate a maximum contaminant level (MCL) or issue a treatment technique much like it has done with the lead and copper rule. If EPA decides to issue MCLs for PFOA, PFOS, and/or other PFAS chemicals, PWSs could be required to monitor for these contaminants. In the RD, EPA says it may seek to minimize the monitoring burden on water systems while assuring public health protection. Minimizing the monitoring burden to the maximum extent feasible and allowed by statute could reduce costs for drinking water systems that have other important risk-reduction resource demands. The EPA is considering alternative approaches for this monitoring that reduce monitoring frequency for systems that are reliably and consistently below the MCL or do not detect the contaminant.
PFAS are found in a wide array of consumer and industrial products. PFAS manufacturing and processing facilities, facilities using PFAS in production of other products, airports, and military installations have been associated with PFAS releases into the air, soil, and water. PFOS and PFOA—two of the most widely-studied and longest-used PFAS and have been detected in up to 98% of serum samples taken in biomonitoring studies that are representative of the U.S. general population.
The pre-publication copy of the proposed regulatory determination may be viewed Here
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Earlier this month, the New York State Department of Environmental Conservation (NYSDEC) just released its new “Guidance for Sampling and Analysis of PFAS Under NYSDEC’s Part 375 Remedial Programs January 2020” (“PFAS Guidance”). The purpose of the PFAS Guidance is to establish procedures for sampling PFAS and for determining if PFAS is a contaminant of concern for a particular site requiring remediation. The PFAS Guidance is not yet available on the NYSDEC website but has been distributed to consultants working on sites subject to one of the DEC remedial programs.
Since the NYSDEC has not yet established Ambient Water Quality Standards (AWQS) and Soil Cleanup Objectives (SCOs) for PFAS , the PFAS Guidance states that the NYSDEC will determine on a case-by-case basis if PFAS-contaminated media will be subject to remediation.
The PFAS Guidance states that all future workplans should include PFAS sampling and analysis procedures that conform to the PFAS Guidance analysis will be required for sampling of soil, groundwater, surface water, and sediment but not soil vapors. The field sampling procedures for the various media are set forth in the appendices. Appendix B establishes the sampling protocols for soils, sediments or other solids. Appendix C sets forth the sampling protocols for non-potable groundwater monitoring wells. Appendix D contains the methodology for sampling PFAS in surface water, Appendix E applies to PFAS sampling of private water supply wells and Appendix F for collecting PFAS samples from fish tissue. Laboratories analyzing environmental samples for PFAS must hold ELAP certification for PFOA and PFOS in drinking water by EPA Method 537.1 or ISO 25101
Appendix G of the PFAS Guidance contains a list of 19 PFAS substances that are to be initially analyzed for all remedial program sites. This PFAS Analyte List may be adjusted or refined for a particular site depending on investigative results.
Water Sample Results –
The PFAS Guidance states that PFAS will be a potential contaminant of concern in groundwater or surface water requiring further assessment when PFOA or PFOS is detected in any water sample at or above 10 ng/L (ppt).
In addition, NYSDEC indicates that further assessment of water may be warranted if either of the following screening levels are met:
- any other individual PFAS (not PFOA or PFOS) is detected in water at or above 100 ng/L; or
- total concentration of PFAS (including PFOA and PFOS) is detected in water at or above 500 ng/L
Soil Sample Results
The PFAS Guidance states that for purposes of delineation and remedy selection, soil samples should be tested using the Synthetic Precipitation Leaching Procedure (SPLP) and the leachate analyzed for PFAS. Soils exhibiting SPLP results above 70 ppt for either PFOA or PFOS (individually or combine) are to be evaluated during the cleanup phase.
The PFAS Guidance notes that the SPLP leachate criteria is based on the Maximum Contaminant Levels (MCL) proposed for drinking water by New York State Department of Health. Thus, the SPLP criteria may be updated based on future federal or state regulatory standards.
NYSDEC indicates in the PFAS Guidance that remedial parties have the option of analyzing samples concurrently for both PFAS in soil and in the SPLP leachate to minimize project delays.
Testing for Imported Soil
The PFAS Guidance states that soil imported to a site for use in a soil cap, soil cover, or as backfill must be tested for PFAS in general conformance with DER-10, Section 5.4(e) for the PFAS Analyte List (Appendix F) using the analytical procedures discussed below and the criteria in DER-10 associated with SVOCs.
- If PFOA or PFOS is detected in any sample at or above 1 µg/kg, then soil should be tested by SPLP and the leachate analyzed for PFAS.
- If the SPLP results exceed 10 ppt for either PFOA or PFOS (individually) then the source of backfill should be rejected, unless a site-specific exemption is provided by DER.
PFAS Sampling For Sites Subject Site Management
For sites that were previously remediated and are now under site management, the PFAS Guidance says PFAS will need to be analyzed to determine if modification to any components of the SMP is necessary (e.g., monitoring for PFAS, upgrading treatment facilities, or performing an RSO).
Thus, much like MTBE sites in the 1990s and chlorinated sites in the early 2000s, it is possible that sites that have received certificate of completion may become subject to reopeners where PFAS was not previously assessed and site management sampling identifies PFAS as a contaminant of concern. As the noted American philosopher Yogi Berra once said, “It Aint Over Till its Over.”
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Performing environmental due diligence has become easier with the launch of the New York State Department of Environmental Conservation DECInfo Locator.
Until the launch of this website, consultants and attorneys seeking information about contaminated sites had to file requests under the state Freedom of Information Law (FOIL). The limited NYSDEC FOIL staff usually took weeks to respond to requests and requestors often had to visit agency offices to review dusty paper files.
To promote greater transparency, NYSDEC launched its DEC Info Locator project. Environmental reports and permits have been scanned and may be viewed electronically. Orders on consent beginning with January 2019 and documents from administrative hearings dating back to 2017 are currently available. Older consent orders and administrative materials will be added in future iterations of DECinfo Locator.
The interactive map also provides data about environmental quality of specific sites around the state and information about outdoor recreational sites. More than 50 data layers are available.
The DEC Info Locator website is available at: https://www.dec.ny.gov/pubs/109457.html
A YouTube video is available to help users explore the site. https://www.dec.ny.gov/pubs/109457.html
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Christmas arrived early for brownfield developers when the United States Treasury Department (“Treasury”) and the Internal Revenue Service (IRS) released the final set of Opportunity Zone (OZ) regulations on December 19th . The final rules confirm that developers of brownfield sites will be eligible for the favorable tax treatment available under the OZ program. The final OZ rules were published in the federal register earlier this week.
The final OZ rule amends the Income Tax Regulations (26 CFR part 1) by adding final regulations under section 1400Z-2 of the IRS Code. Section 1400Z-2 provides two main federal income tax benefits to eligible taxpayers that make longer-term investments of new capital in one or more designated qualified opportunity zones (QOZs) through qualified opportunity fund (QOF) and qualified opportunity zone businesses.
The first main Federal income tax benefit is the ability of eligible taxpayers to defer certain capital gains until as late as December 31, 2026. Moreover, eligible taxpayers may potentially exclude 10% of such deferred gain from gross income if the eligible taxpayer holds the qualifying investment in the QOF for at least five years. In addition, taxpayers may exclude an additional 5% of such gain if the eligible taxpayer holds that qualifying investment for at least seven years.
The second main Federal income tax benefit is that eligible taxpayers may exclude appreciation on the eligible taxpayer’s qualifying investment in the QOF if the eligible taxpayer holds the qualifying investment for at least 10 years.
Section 1400Z2-2(d)(2)(D) requires either that the original use of qualified opportunity zone business property in the QOZ commences with the QOF or qualified opportunity zone business or that the QOF or qualified opportunity zone business substantially improve the property. After Treasury and the IRS proposed rules in October 2018, developers and the EPA Office of Brownfields and Land Revitalization filed comments requesting clarification on how the “substantial improvement” and the “original use” tests applied to brownfield sites. See our blog post discussing the issues in more detail.
Treasury and IRS issued a second notice of proposed rulemaking in May 2019 (84 FR 18652) responding to the initial comments. The revised proposed rules did not fully address the comments submitted by EPA and the brownfield community.
The third time proved a charm for brownfield developers as the final rule unequivocally and clearly addresses EPA and brownfield developer concerns raised in the two preceding rounds of rulemaking.
Vacancy Period to Qualify for Original Use.
The proposed regulations provided that a building or other structure must be vacant for at least five years prior to being purchased by a QOF or qualified opportunity zone business to satisfy the “original use” requirement. Some commenters suggested the five-year period was too long while others were concerned a shorter period would incentivize developers to warehouse properties.
As a result, the final rule modifies the vacancy period. There is now a special one-year vacancy requirement for property that was vacant prior immediately to the date of publication of a QOZ containing the property is located.. For property that was not vacant at the time of such QOZ designation notice but becomes vacant later, the final regulations require the property to be vacant continuously for at least three years.
Clarification of the Term “Vacant” for Purposes of Applying the Vacant Property Rules
Commenters also asked Treasury and IRS to clarify the meaning of “vacant”. The agencies were told that local governments often hold inventories of brownfield sites and other blighted properties through tax delinquency, abandonment, bankruptcy, with varying historic uses and that there were differing regulatory definitions under state and federal programs of what constituted a vacant site.
The final QZ regulations provide that real property (including land and buildings) is considered to be in a state of vacancy if the property is “significantly unused.” A building or land is considered “significantly unused” under the final regulations if more than 80% of the building or land is not used, as measured by the square footage of useable space.
Buildings Located on Brownfield Sites Qualify as “Original Use” Property
The final regulations make clear that “all real property composing a brownfield site, including land and structures located thereon,” will be treated by the IRS as satisfying the “original use” test requirement of section 1400Z-2(d)(2)(D)(i)(II). In making this decision, Treasury wrote :
“Cleaning up and reinvesting in these properties increases local tax bases, facilitates job growth, utilizes existing infrastructure, takes development pressures off of undeveloped, open land, and both improves and protects the environment”
Clarification of Activities and Expenses That Count as “Substantial Improvements” Test
The final rule provides that the costs of brownfield site assessment and remediation are eligible as cost of “substantial improvement” where:
“ the land has been more than minimally improved, and that the QOF or qualified OZ business must make investments into the brownfield site to improve its safety and environmental standards.”
Requests for Extensions and Safe Harbors Regarding 30-Month Substantial Improvement Period
The proposed rule required substantial improvements had to be completed within 30 months. Treasury received comments requesting an extension of the 30-month period for brownfield sites because of the delays associated with regulatory approvals.
The final regulations provide that if a governmental permitting delay has caused the delay of a project covered by the 30-month working capital safe harbor, and no other action could be taken to improve the tangible property or complete the project during the permitting process, then the 30-month working capital safe harbor will be tolled for a duration equal to the permitting delay.
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